Rule2023-12494
NPDES Small MS4 Urbanized Area Clarification
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 12, 2023
Effective
July 12, 2023
Issuing agencies
Environmental Protection Agency
Abstract
The U.S. Environmental Protection Agency (EPA) is finalizing clarifications to its National Pollutant Discharge Elimination System (NPDES) Stormwater Phase II regulations due to recent changes made by the Census Bureau. The changes to EPA's regulations are limited to clarifying that the designation criteria for small municipal separate storm sewer systems (MS4s), which have been used since the promulgation of the regulations in 1999, will remain the same. These clarifications are necessary due to the Census Bureau's recent decision to discontinue its practice of publishing the location of "urbanized areas" along with the 2020 Census and future censuses. The clarifications in this final rule replace the term "urbanized area" in the Phase II regulations with the phrase "urban areas with a population of at least 50,000," which is the Census Bureau's longstanding definition of the term urbanized areas. This change allows NPDES permitting authorities to use 2020 Census and future Census data in a manner that is consistent with existing longstanding regulatory practice.
Full Text
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<title>Federal Register, Volume 88 Issue 112 (Monday, June 12, 2023)</title>
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[Federal Register Volume 88, Number 112 (Monday, June 12, 2023)]
[Rules and Regulations]
[Pages 37994-38000]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-12494]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 122 and 123
[EPA-HQ-OW-2022-0834; FRL-10123-06-OW]
RIN 2040-AG27
NPDES Small MS4 Urbanized Area Clarification
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The U.S. Environmental Protection Agency (EPA) is finalizing
clarifications to its National Pollutant Discharge Elimination System
(NPDES) Stormwater Phase II regulations due to recent changes made by
the Census Bureau. The changes to EPA's regulations are limited to
clarifying that the designation criteria for small municipal separate
storm sewer systems (MS4s), which have been used since the promulgation
of the regulations in 1999, will remain the same. These clarifications
are necessary due to the Census Bureau's recent decision to discontinue
its practice of publishing the location of ``urbanized areas'' along
with the 2020 Census and future censuses. The clarifications in this
final rule replace the term ``urbanized area'' in the Phase II
regulations with the phrase ``urban areas with a population of at least
50,000,'' which is the Census
[[Page 37995]]
Bureau's longstanding definition of the term urbanized areas. This
change allows NPDES permitting authorities to use 2020 Census and
future Census data in a manner that is consistent with existing
longstanding regulatory practice.
DATES: This final rule is effective on July 12, 2023.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OW-2022-0834. All documents in the docket are listed on the
<a href="http://www.regulations.gov">http://www.regulations.gov</a> website. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available electronically through <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Heather Huddle, Water Permits Division
(MC4203), Environmental Protection Agency, 1200 Pennsylvania Ave. NW,
Washington, DC 20004; telephone number: (202) 564-7932; email address:
<a href="/cdn-cgi/l/email-protection#a2cad7c6c6cec78ccac7c3d6cac7d0e2c7d2c38cc5cdd4"><span class="__cf_email__" data-cfemail="85edf0e1e1e9e0abede0e4f1ede0f7c5e0f5e4abe2eaf3">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: This action is limited to clarifying that
EPA is retaining the existing threshold for automatic designation of
small MS4s for regulation under the Phase II stormwater permitting
regulations. The threshold for automatic designation was used following
the 2000 and 2010 Censuses and is based on the MS4 being in an
urbanized area of 50,000 or more people. This final rule maintains the
threshold for automatic designations of small MS4s and ensures that the
designation of new MS4s will continue as originally required under the
Phase II regulations.
EPA's action finalizes changes that were proposed on December 2,
2022 (87 FR 74066) in tandem with the publication of a direct final
rule (87 FR 73965, December 2, 2022), both of which included the same
regulatory changes. EPA withdrew the direct final rule (88 FR 10851,
February 22, 2023) after receiving an adverse comment.
Table of Contents
I. General Information
A. Does this action apply to me?
B. What action is EPA taking?
C. What is the agency's authority for taking this action?
D. Background
II. Rationale and Summary of the Rule
A. Why a Change to the Phase II Regulations Is Appropriate
B. Rationale for Clarification to Phase II Regulations
C. Summary of Changes to Phase II Regulations
D. Costs of This Action
E. Implementation and Technical Assistance
III. Statutory and Executive Orders Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 14094: Modernizing Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
I. National Technology Transfer and Advancement Act (NTTAA)
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act (CRA)
I. General Information
A. Does this action apply to me?
Entities regulated by this action include:
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North American
industry
Category Examples of regulated classification
entities system (NAICS)
code
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Federal and state government.. EPA or state NPDES 924110
stormwater permitting
authorities.
Local governments............. Operators of small 924110
municipal separate
storm sewer systems.
State government.............. State departments of 926120
transportation.
Military...................... Federal military bases 928110
Public academic institutions.. Publicly-administered 611310
colleges,
universities, and
professional schools.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table includes the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not included could also be regulated. To determine whether your entity
is regulated by this action, you should carefully examine the
applicability criteria found in 40 CFR 122.28, 122.32, and 122.35, and
the discussion in the preamble. If you have questions regarding the
applicability of this action to a particular entity, consult the person
listed in the FOR FURTHER INFORMATION CONTACT section.
B. What action is EPA taking?
EPA is clarifying its NPDES Phase II regulations due to recent
changes made by the Census Bureau. The changes to EPA's regulations are
limited to clarifying that the designation criteria for small MS4s,
which have been used since the promulgation of the regulations in 1999,
will remain the same. The clarification replaces the term previously
used by the Census Bureau, ``urbanized area,'' with the phrase ``urban
areas with a population of at least 50,000,'' which is the Census
Bureau's longstanding criteria for defining urbanized areas.
C. What is the Agency's authority for taking this action?
The authority for this rulemaking is the Federal Water Pollution
Control Act, 33 U.S.C. 1251 et seq., including sections 402 and 501.
D. Background
1. Statutory and Regulatory Overview
Stormwater discharges are subject to regulation under section
402(p) of the Clean Water Act (CWA). Under this provision, Congress
required the following stormwater discharges initially to be subject to
NPDES permitting requirements: stormwater discharges for which NPDES
permits were issued prior to February 4, 1987; discharges ``associated
with industrial activity;'' discharges from MS4s serving
[[Page 37996]]
populations of 100,000 or more; and any stormwater discharge determined
by EPA or a state to ``contribute[ ] to a violation of a water quality
standard or [to be] a significant contributor of pollutants to waters
of the United States.'' Congress further directed EPA to study other
stormwater discharges and determine which discharges needed additional
controls.
EPA developed the stormwater regulations under section 402(p) of
the CWA in two phases, as directed by the statute. In the first phase,
under section 402(p)(4) of the CWA, EPA promulgated regulations
establishing application and other NPDES permit requirements for
stormwater discharges from medium (serving populations of 100,000 and
up to 250,000) and large (serving populations of 250,000 or more) MS4s,
and stormwater discharges associated with industrial activity. EPA
published the final Phase I rule on November 16, 1990. 55 FR 47990. The
Phase I rule, among other things, defined ``municipal separate storm
sewer'' as publicly-owned conveyances or systems of conveyances that
discharge to waters of the United States and are designed or used for
collecting or conveying stormwater, are not combined sewers, and are
not part of a publicly-owned treatment works. 40 CFR 122.26(b)(8).
In the second phase, sections 402(p)(5) and (6) of the CWA required
EPA to conduct a study to identify other stormwater discharges that
needed further controls ``to protect water quality,'' report to
Congress on the results of the study, and designate for regulation
additional categories of stormwater discharges not regulated in Phase I
in consultation with state and local officials. EPA promulgated the
Phase II rule on December 8, 1999, designating discharges from certain
small MS4s and from small construction sites (disturbing equal to or
greater than one acre and less than five acres) and requiring NPDES
permits for these discharges. 64 FR 68722 (December 8, 1999). A
regulated small MS4 is generally defined as any MS4 that is not already
covered by the Phase I program and is located within the ``urbanized
area'' boundary as determined by the latest U.S. Decennial Census. 40
CFR 122.32(a)(1) (``you are regulated if you operate a small MS4,
including but not limited to systems operated by Federal, State,
Tribal, and local governments, including State departments of
transportation; and . . . [y]our small MS4 is located in an urbanized
area as determined by the latest Decennial Census by the Bureau of the
Census.'').
Separate storm sewer systems such as those serving military bases,
universities, large hospitals or prison complexes, and highways are
also included in the definition of ``small MS4.'' 40 CFR 122.26(b)(16).
In addition, the Phase II rule includes authority for EPA (or states
authorized to administer the NPDES program) to require NPDES permits
for currently unregulated stormwater discharges through a designation
process. 40 CFR 122.26(a)(9)(i)(C) and (D). Other small MS4s located
outside of an urbanized area may be designated as a regulated small MS4
if the NPDES permitting authority determines that its discharges cause,
or have the potential to cause, an adverse impact on water quality. 40
CFR 122.32(a)(2), 123.35(b)(3).
2. History of Using Urbanized Area Population Threshold for Small MS4
Designations
Beginning with the 1950 Census, the Census Bureau defined
``urbanized area'' as ``one or more cities of 50,000 or more and all
the nearby closely settled suburban territory, or urban fringes.'' \1\
This definition was in effect when EPA promulgated the Phase II Rule in
1999, and for the two censuses (2000 and 2010 Census) that have been
published since then.\2\ The Census Bureau's use of this population
threshold is significant for the Phase II permit program because where
an MS4 is located within an area identified in the latest decennial
Census as having a minimum population of 50,000 or more people (i.e.,
in an ``urbanized area''), the MS4 is automatically designated as
regulated under the Phase II regulations.
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\1\ 1950 Census of Population--Preliminary Counts, Population of
Urbanized Areas: April 1, 1950, U.S. Department of Commerce, Bureau
of the Census. Series PC-3 No. 9. February 1, 1951. See <a href="https://www2.census.gov/library/publications/decennial/1950/pc-03/pc-3-09.pdf">https://www2.census.gov/library/publications/decennial/1950/pc-03/pc-3-09.pdf</a>.
\2\ Urbanized areas have been defined by the Census Bureau as
``urban areas that contain 50,000 or more people. . .''. See 76 FR
53030, 53039 (August 24, 2011); and 67 FR 11663, 116667 (March 15,
2002).
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The Phase II regulations have referred to the term ``urbanized
area'' since the small MS4 program's inception and this term has always
been used synonymously with the 50,000 population threshold. When EPA
initially promulgated the Phase II regulations, EPA explained that it
was adopting the Census Bureau's definition of ``urbanized area'' as
one of the designation criteria for small MS4s and provided a
definition of ``urbanized area'' that was identical to the Census
Bureau's definition. EPA stated in the preamble to the Phase II rule
that ``[u]nder the Bureau of the Census definition of `urbanized area,'
adopted by EPA for the purposes of this final rule, `an urbanized area
(UA) comprises a place and the adjacent densely settled surrounding
territory that together have a minimum population of 50,000 people.' ''
64 FR 68722, 68751 (December 8, 1999).
EPA acknowledged that the Census Bureau could in the future change
the criteria by which it defines ``urbanized area,'' which would then
in turn affect the way in which new small MS4s would be automatically
designated. It is for this reason that EPA explained in the Phase II
rule preamble that new MS4 designations ``will be governed by the
Bureau of the Census' definition of an urbanized area in effect for
that year.'' 64 FR 68722, 68751 (December 8, 1999). However, the Census
Bureau has not changed the 50,000 population threshold since they
adopted it 70 years ago. From the small MS4 permit program's inception
in 1999, therefore, EPA and state permitting authorities have always
relied on the 50,000 population threshold to automatically designate
and regulate MS4s. It is only now with the 2020 Census that the Census
Bureau has announced its decision to no longer separately identify
``urbanized areas.'' 87 FR 16706, 16707 (March 24, 2022).
II. Rationale and Summary of the Rule
A. Why a Change to the Phase II Regulations Is Appropriate
The original Phase II regulatory text did not explicitly instruct
EPA how to treat the designation of MS4s in the event that the Census
Bureau's decennial censuses determines that it will no longer
separately identify ``urbanized areas.'' For the 1999 Phase II rule,
EPA always intended the universe of regulated small MS4s to grow in a
manner commensurate with the growth of ``urbanized areas'' as
identified by the latest decennial census. However, while the Phase II
rule preamble explained that additional MS4s would be designated in
accordance with the latest census definition of ``urbanized area,'' it
did not provide instruction on what to do if a decennial census no
longer identifies the location of such urbanized areas.\3\
[[Page 37997]]
EPA is taking this action to address the Census Bureau's changes and
clarify for permitting authorities and the public that the scope of
which small MS4s are regulated will not change, and that EPA will rely
on what that term has always meant rather than having the regulations
reference an out-of-date term.
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\3\ EPA stated in the Phase II rule preamble that: ``Additional
designations based on subsequent census years will be governed by
the Bureau of the Census' definition of an urbanized area in effect
for that year. Based on historical trends, EPA expects that any area
determined by the Bureau of the Census to be included within an
urbanized area as of the 1990 Census will not later be excluded from
the urbanized area as of the 2000 Census. However, it is important
to note that even if this situation were to occur, for example, due
to a possible change in the Bureau of the Census' urbanized area
definition, a small MS4 that is automatically designated into the
NPDES program for storm water under an urbanized area calculation
for any given Census year will remain regulated regardless of the
results of subsequent urbanized area calculations.'' 64 FR 68751
(December 8, 1999).
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B. Rationale for Clarification to Phase II Regulations
The most straightforward way for EPA to clarify its regulations in
a manner that maintains program continuity and consistency is to
replace the reference to ``urbanized area'' in the Phase II regulations
with text that replicates the 50,000 population threshold on which the
Census Bureau and NPDES authorities have historically relied. As
discussed in section II.D.2 of this preamble, from the inception of the
small MS4 permitting program, the 50,000 population threshold has been
used synonymously with the term ``urbanized area'' by both the Census
Bureau and NPDES permitting authorities. Replacing the term ``urbanized
area'' with text that incorporates this same 50,000 population
threshold means that the existing method for designating small MS4s
following the latest decennial census will be identical to how it has
always been implemented. This change ensures that there is no
disruption in the designation of additional MS4s and that the program
will be implemented in a historically consistent manner.
Substituting the obsolete references to ``urbanized areas'' with
the 50,000 population threshold also ensures that new Census 2020
mapping data and subsequent census mapping data can be used seamlessly
to identify newly regulated MS4s. Prior to the recent Census Bureau
changes, the location of any ``urbanized areas'' would have been
automatically identified with any decennial census. Moving forward,
however, each decennial census will be limited to identifying ``urban
areas'' without identifying ``urbanized areas'' within those areas.
Even though ``urbanized area'' locations will no longer be provided as
part of the 2020 Census and future censuses, the Census Bureau will
continue to provide population data for each identified urban area.\4\
The Census Bureau published these data to its website in January 2023
at <a href="https://www.census.gov/programs-surveys/geography/guidance/geo-areas/urban-rural.html">https://www.census.gov/programs-surveys/geography/guidance/geo-areas/urban-rural.html</a>. These population data will enable EPA and state
permitting authorities to identify which urban areas have populations
of 50,000 or more people and, therefore, to provide the necessary
information to designate new MS4s.
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\4\ In its 2020 Urban Areas Frequent Asked Questions, the Census
Bureau provided the following answer in response to the question
``Is it true that the Census Bureau is no longer defining urbanized
areas?'': ``No. The Census Bureau will no longer identify an
individual urban area as either an urbanized area or an urban
cluster. We will refer to all areas as ``urban areas'' regardless of
population size. We will publish population and housing counts for
each urban area when we announce results of the 2020 Census urban
area delineation. Data users and program will be able to use those
counts and subsequent American Community Survey estimates to
categorize urban areas according to population size.'' (emphasis
added) See <a href="https://www2.census.gov/geo/pdfs/reference/ua/2020_Urban_Areas_FAQs.pdf">https://www2.census.gov/geo/pdfs/reference/ua/2020_Urban_Areas_FAQs.pdf</a>.
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C. Summary of Changes to Phase II Regulations
The changes to the Phase II regulations are limited to replacing
the existing references to ``urbanized area'' as a criterion for
designating small MS4s for regulation with text that incorporates the
underlying population threshold associated with that term, or more
specifically ``urban areas with a population of 50,000 or more
people.'' This change is made in the following specific sections:
<bullet> 40 CFR 122.28(a)(1)(vi): This provision describes the
requirement that general permits can only be used to provide coverage
to discharges in a specific geographic area. The final rule replaces
the original reference to ``urbanized areas'' in one of the examples of
geographic or political boundary areas that meet this requirement with
the described 50,000 population threshold.
<bullet> 40 CFR 122.32(a)(1): This original provision specified
that small MS4s located in ``urbanized areas'' are regulated as small
MS4s. The reference to ``urbanized areas'' is replaced by the described
50,000 population threshold.
<bullet> 40 CFR 122.32(d): The original provision indicated that
small MS4s regulated under 40 CFR 122.32(a)(1) for ``urbanized areas''
may be eligible for an NPDES waiver if they meet the applicable
criteria. The reference to ``urbanized areas'' is substituted with a
reference to the revised text in 40 CFR 122.32(a)(1).
<bullet> 40 CFR 122.33(b)(3): The original provision referenced the
ability of regulated small MS4s located in the same ``urbanized area''
as a medium or large MS4 to be included as a limited co-permittee in
the same NPDES permit as the medium or large MS4. The reference to
``urbanized area'' is modified to read ``urban area'' instead.
<bullet> 40 CFR 123.35(b)(1)(ii): The original provision included a
reference to an ``urbanized area'' in the context of regulatory
guidance on criteria that state permitting authorities may use to
designate other small MS4s for regulation, including ``contiguity to an
urbanized area.'' The reference to ``urbanized area'' is replaced by
the described 50,000 population threshold.
<bullet> 40 CFR 123.35(b)(2): The original provision included a
reference to an ``urbanized area'' in the context of applying state
permitting authority criteria for designating additional small MS4s for
regulation, including MS4s located outside of an ``urbanized area''
serving a jurisdiction with a population density of at least 1,000
people per square mile and a population of at least 10,000. The
reference to ``urbanized area'' is replaced by the described 50,000
population threshold.
<bullet> 40 CFR 123.35(d)(1): The original provision indicated that
small MS4s regulated under 40 CFR 122.32(a)(1) for ``urbanized areas''
may be eligible for an NPDES waiver if they meet the applicable
criteria. The reference to ``urbanized areas'' is substituted with the
described 50,000 population threshold.
D. Costs of This Action
The regulatory clarifications in this rule ensure that the
population basis for regulating small MS4s remains the same. As a
result, these clarifications do not result in increased costs to small
MS4 permittees or to state and EPA permitting programs, nor do the rule
changes result in regulating additional MS4s beyond what was required
by the 1999 Phase II regulations.
E. Implementation and Technical Assistance
EPA will be providing technical assistance to permitting
authorities in several ways to help with the implementation of the MS4
program following publication of the new census data. The following is
a summary of EPA's ongoing technical assistance activities:
<bullet> Publish new MS4 mapping information: EPA will work with
permitting authorities on new MS4 mapping information. Using the now
published 2020 Census urban area information, EPA will identify which
urban areas have a population of 50,000 or more people. EPA will also
use the 2020 Census data to identify where urban areas with a
population of 50,000 or more people are located in the United States
and where these areas are located
[[Page 37998]]
with respect to municipal boundaries. EPA will share this information
with permitting authorities to enable them to determine which
jurisdictions are likely operating MS4s within urban areas that meet
the 50,000 population threshold. EPA will provide mapping information
that compares the 2010 Census and 2020 Census locations of these urban
areas. Permitting authorities will be able to use this information to
pinpoint the location of newly designated MS4s and compare how the
urban area boundaries have changed for existing MS4s since the 2010
Census.
<bullet> Provide permitting authorities with a preliminary list of
newly designated MS4s: To assist NPDES permitting authorities, EPA is
using the mapping information described under the previous bullet point
to preliminarily identify newly designated MS4s that are located within
urban areas with a population of 50,000 or more people. EPA provided a
similar list of newly designated MS4s following the 2010 Census.
Permitting authorities are then free to evaluate the MS4s identified on
this list to determine if the information is accurate and whether any
changes are needed. Permitting authorities may also need to assess any
requests for permitting waivers submitted by newly designated MS4s that
have been notified of their designation by the permitting authority.
<bullet> Provide guidance materials for permitting authorities: EPA
is providing additional guidance related to the process of permitting
newly designated MS4s that NPDES authorities may choose to use. EPA
provided similar guidance following the publication of the 2010 Census,
which included tips on the suggested steps to follow from initial
contact with the new MS4 operators to including them in the applicable
NPDES permit. After the 2010 Census, EPA also provided a letter
template that permitting authorities could use to inform new MS4
operators of their designation and what to expect from the permitting
process moving forward. The Agency is updating these materials for the
2020 Census and will explore what additional technical assistance may
be needed.
<bullet> Rescind interim guidance: In 2022, EPA published on its
website Interim Guidance on Census Elimination of ``Urbanized Areas''
(see <a href="https://www.epa.gov/npdes/interim-guidance-census-elimination-urbanized-area-definition">https://www.epa.gov/npdes/interim-guidance-census-elimination-urbanized-area-definition</a>). The guidance was intended to provide
interim recommendations to permitting authorities regarding the
implementation of their small MS4 permitting programs following the
finalization of the Census Bureau's designation criteria changes while
EPA evaluated how best to clarify its regulations. With the publication
of this final rule, the interim guidance is no longer necessary and has
been rescinded.
III. Statutory and Executive Orders Reviews
Additional information about these statutes and Executive Orders
can be found at <a href="https://www.epa.gov/laws-regulations/laws-and-executive-orders">https://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 14094: Modernizing Regulatory Review
This action is not a significant regulatory action as defined in
Executive Order 12866, as amended by Executive Order 14094, and was
therefore not subject to a requirement for Executive Order 12866
review.
B. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA. OMB has previously approved the information collection
activities contained in the existing regulations and has assigned OMB
control number 2040-0004. This rule contains no new requirements for
reporting and recordkeeping.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, EPA concludes that the impact of concern for
this rule is any significant adverse economic impact on small entities
and that the Agency is certifying that this rule will not have a
significant economic impact on a substantial number of small entities
because the rule has no net burden on the small entities subject to the
rule. EPA limits this rule to substituting the use of the term
``urbanized area'' with the underlying population criteria that has
been used synonymously with this term since the 1999 promulgation of
the regulations in four subsections of the Phase II regulations. See
discussion in sections II.B and C of this preamble. Although making
this clarification is important to ensure program continuity and
consistency, EPA views this change as akin to a clerical correction to
remove an obsolete term and ensure that program applicability remains
unchanged. EPA has therefore concluded that this action will have no
net regulatory burden for all directly regulated small entities.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or tribal governments, or the private sector.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. It will not have substantial direct effects on
tribal governments, on the relationship between the Federal government
and Indian tribes, or on the distribution of power and responsibilities
between the Federal government and Indian tribes, as specified in
Executive Order 13175. Thus, Executive Order 13175 does not apply to
this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definition of ``covered regulatory action'' in section 2-202 of
the Executive Order. This action is not subject to Executive Order
13045 because it does not concern an environmental health risk or
safety risk.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act (NTTAA)
This rule does not involve technical standards.
[[Page 37999]]
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) directs
Federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations (people of color and/or indigenous
peoples) and low-income populations.
EPA believes that the human health and environmental conditions
that exist prior to this action do not result in disproportionate and
adverse effects on people of color, low-income populations, and/or
indigenous peoples. This action makes a technical clarification to a
previously promulgated regulatory action and will not change the human
health and environmental conditions that currently exist with the
implementation of the Phase II regulations.
EPA believes that this action is not likely to result in new
disproportionate and adverse effects on people of color, low-income
populations and/or indigenous peoples. This regulatory action is a
technical clarification to a previously promulgated regulatory action
and does not have any disproportionate and adverse impact on people of
color, low-income populations, and/or indigenous peoples.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
List of Subjects
40 CFR Part 122
Environmental protection, Stormwater, Water pollution.
40 CFR Part 123
Environmental protection, Stormwater, Water pollution.
Michael S. Regan,
Administrator.
For the reasons stated in the preamble, EPA amends 40 CFR parts 122
and 123 as set forth below:
PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
0
1. The authority citation for part 122 continues to read as follows:
Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.
0
2. Amend Sec. 122.28 by revising paragraph (a)(1)(vi) to read as
follows:
Sec. 122.28 General permits (applicable to State NPDES programs, see
Sec. 123.25).
(a) * * *
(1) * * *
(vi) Urban areas with a population of 50,000 or more people as
determined by the latest Decennial Census by the Bureau of the Census;
or
* * * * *
0
3. Amend Sec. 122.32 by revising paragraphs (a)(1) and (d)
introductory text to read as follows:
Sec. 122.32 As an operator of a small MS4, am I regulated under the
NPDES storm water program?
(a) * * *
(1) Your small MS4 is located in an urban area with a population of
50,000 or more people as determined by the latest Decennial Census by
the Bureau of the Census. (If your small MS4 is not located entirely
within an urban area with a population of 50,000 or more people, only
the portion that is within this urban area is regulated); or
* * * * *
(d) The NPDES permitting authority may waive permit coverage if
your MS4 serves a population of less than 1,000 within the urban area
identified in paragraph (a)(1) of this section and you meet the
following criteria:
* * * * *
0
4. Amend Sec. 122.33 by revising paragraph (b)(3) to read as follows:
Sec. 122.33 Requirements for obtaining permit coverage for regulated
small MS4s.
* * * * *
(b) * * *
(3) Co-permittee alternative. If the regulated small MS4 is in the
same urban area as a medium or large MS4 with an NPDES storm water
permit and that other MS4 is willing to have the small MS4 operator
participate in its storm water program, the parties may jointly seek a
modification of the other MS4 permit to include the small MS4 operator
as a limited co-permittee. As a limited co-permittee, the small MS4
operator will be responsible for compliance with the permit's
conditions applicable to its jurisdiction. If the small MS4 operator
chooses this option it must comply with the permit application
requirements of Sec. 122.26, rather than the requirements of paragraph
(b)(2)(i) of this section. The small MS4 operator does not need to
comply with the specific application requirements of Sec.
122.26(d)(1)(iii) and (iv) and (d)(2)(iii) (discharge
characterization). The small MS4 operator may satisfy the requirements
in Sec. 122.26(d)(1)(v) and (d)(2)(iv) (identification of a management
program) by referring to the other MS4's storm water management
program.
* * * * *
PART 123--STATE PROGRAM REQUIREMENTS
0
5. The authority citation for part 123 continues to read as follows:
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
0
6. Amend Sec. 123.35 by revising paragraphs (b)(1)(ii), (b)(2), and
(d)(1) introductory text to read as follows:
Sec. 123.35 As the NPDES Permitting Authority for regulated small
MS4s, what is my role?
* * * * *
(b) * * *
(1) * * *
(ii) Guidance: For determining other significant water quality
impacts, EPA recommends a balanced consideration of the following
designation criteria on a watershed or other local basis: discharge to
sensitive waters, high growth or growth potential, high population
density, contiguity to an urban area with a population of 50,000 people
or more as determined by the latest Decennial Census by the Bureau of
the Census, significant contributor of pollutants to waters of the
United States, and ineffective protection of water quality by other
programs;
(2) Apply such criteria, at a minimum, to any small MS4 located
outside of an urban area with a population of 50,000 people or more as
determined by the latest Decennial Census by the Bureau of the Census
serving a jurisdiction with a population density of at least 1,000
people per square mile and a population of at least 10,000;
* * * * *
[[Page 38000]]
(d) * * *
(1) You may waive permit coverage for each small MS4s in
jurisdictions with a population under 1,000 within the urban area with
a population of 50,000 people or more as determined by the latest
Decennial Census by the Bureau of the Census where all the following
criteria have been met:
* * * * *
[FR Doc. 2023-12494 Filed 6-9-23; 8:45 am]
BILLING CODE 6560-50-P
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